Silva v. Barreras et al

Filing 35

ORDER adopting 34 Report and Recommendation, granting 32 Motion to Dismiss, and Denying Certificate of Appealability. Signed by Judge Thomas J. Whelan on 4/2/2012. (All non-registered users served via U.S. Mail Service)(mtb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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JESUS SILVA,

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CASE NO. 09-CV-2193 W (BGS)
Plaintiff,

ORDER (1) ADOPTING REPORT
AND RECOMMENDATION
(DOC. 34), (2) GRANTING
MOTION TO DISMISS (DOC.
32), AND (3) DENYING
CERTIFICATE OF
APPEALABILITY

v.

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NASARIA P. BARRERAS, et al.,
Defendants.

On March 8, 2010, Plaintiff Jesus Silva, a state prisoner proceeding pro se, filed

19 his First Amended Complaint (“FAC”) in this lawsuit brought under 42 U.S.C. § 1983.
20 Plaintiff alleges that Defendants deprived him of his Eighth Amendment right to be free
21 from cruel and unusual punishment, were deliberately indifferent to his medical needs,
22 and were negligent under state tort law. On September 6, 2011, Defendants filed a
23 motion to dismiss the FAC. (See Doc. 32.) Plaintiff did not oppose the motion.
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On February 17, 2012, Magistrate Judge Bernard G. Skomal issued a Report and

25 Recommendation (“Report”), recommending that the Court grant the motion to
26 dismiss. (See Doc. 34.) The Report also ordered that any objections were to be filed no
27 later than 17 days after receiving a copy of the Report, and any Reply within 10 days
28 of being served with the objections. Based on these deadlines, any objection was due
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09cv2193w

1 on or before March 5, 2012. To date, no objection has been filed, nor has there been
2 a request for additional time in which to file an objection.
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A district court’s duties concerning a magistrate judge’s report and

4 recommendation and a respondent’s objections thereto are set forth in Rule 8(b) of the
5 Rules Governing Section 2254 Cases in the United States District Courts. See Mayle
6 v. Felix, 545 U.S. 644, 654 (2005) (Acknowledging that a “discrete set of Rules governs
7 federal habeas proceedings launched by state prisoners.”) Rule 8(b) provides that a
8 district judge “must determine de novo any proposed finding or recommendation to
9 which objection is made.” In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th
10 Cir. 2003), the Ninth Circuit interpreted identical language in 28 U.S.C. 636(b)(1)(c)
11 as making clear that “the district judge must review the magistrate judge’s findings and
12 recommendations de novo if objection is made, but not otherwise.” (emphasis in
13 original); see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)(“Of
14 course, de novo review of a R & R is only required when an objection is made to the
15 R & R.”)(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino,
16 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review
17 because neither party filed objections to the Report despite the opportunity to do so,
18 “accordingly, the Court will adopt the Report and Recommendation in its entirety.”);
19 see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).
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The Court recognizes that other district courts within the Ninth Circuit,

21 including this Court, have previously held that de novo review of the magistrate judge’s
22 findings of law is required even where the prisoner does not object. See Johnson v.
23 Nelson, 142 F.Supp.2d 1215, 1217 (S.D.Cal. 2001); Avratin v. Bermudez, 420 F.
24 Supp.2d 1121, 1122-23 (S.D.Cal. 2006); Cordeiro v. Hernandez, 2010 WL 364193
25 (S.D.Cal. 2010). These cases, however, are all rooted in the Ninth Circuit’s decision
26 in Britt v. Simi Valley Unified school District, 708 F.2d 452 (9th Cir. 1983). The Court
27 finds that reliance on Britt, however, is no longer appropriate given the Ninth Circuit’s
28 more recent en banc decision in Renya-Tapia. See Schmidt v. Johnstone, 263 F. Supp.
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1 2d 1219, 1226 (D. Arizona 2003) (concluding that Renya-Tapia overruled Britt’s
2 requirement that district court’s review findings of law even where no objections are
3 filed.)
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The Court, therefore, accepts Judge Skomal’s recommendation, and ADOPTS

5 the Report (Doc. 34) in its entirety. For the reasons stated in the Report, which is
6 incorporated herein by reference, the Court GRANTS the motion to dismiss (Doc. 32)
7 and ORDERS this matter DISMISSED. The Court also DENIES a CERTIFICATE
8 OF APPEALABILITY.
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IT IS SO ORDERED.

11 DATED: April 2, 2012
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Hon. Thomas J. Whelan
United States District Judge

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